More On Confronting Your Accuser

The Sixth Amendment to the U.S. Constitution gives the accused in criminal cases the right to confront witnesses against them. The U.S. Supreme Court has written a series of cases on this subject. Justice Antonin Scalia has been the leader of the strict confrontation clause jurisprudence that has evolved since. The most recent case, Bullcoming v. New Mexico, issued at the end of the past term, was unusual in its 5-4 line-up — Justice Ruth Bader Ginsburg wrote the majority decision, and was joined by Justices Kagan, Sotomayor, Scalia and Thomas. Justice Anthony Kennedy wrote the dissent, joined by Justices Breyer, Alioto and Chief Justice Roberts. Let’s take a look at what happened.

Donald Bullcoming was arrested for drunk driving after an accident in which he rear-ended a pick-up truck in Farmington, N.M. He refused to take a breathalyzer test, so the police got a warrant to take his blood to determine his blood alcohol concentration. The standard operating procedure when this happens is to send the blood sample to the New Mexico Department of Health Scientific Laboratory Division for testing. A report is then prepared, signed and certified by the analyst who did the testing. In this case that was Curtis Caylor. The procedures followed are detailed on the back of the report form.

The analysts at the New Mexico lab use a gas chromatograph machine to determine blood alcohol levels. Special knowledge and training are needed to use that machine. Caylor’s report showed Bullcoming’s blood alcohol concentration at 0.21, which under New Mexico law kicked the drunk driving charge up to a more serious offense.

At Bullcoming’s trial, the prosecution announced that Caylor would not be testifying because he had been placed on unpaid leave for a reason that was not disclosed. Instead, the state introduced Caylor’s report through the testimony of a different analyst who had not personally performed or observed the tests, nor signed the certification, but who was familiar with all the procedures and did similar testing himself. Bullcoming was convicted by a jury of aggravated drunk driving. On appeal he challenged the admission of the report since he never got a chance to cross examine Curtis Caylor, the analyst who prepared it. The New Mexico Supreme Court held that the report was properly admitted through the substitute witness. The U.S. Supreme Court reversed that decision.

In a landmark decision in 2004 the U.S. Supreme Court held that any testimonial statement from a witness who is unavailable to testify at trial can only be admitted if the accused has had the prior opportunity to cross-examine that witness. Then, as is typical of the law, it took several years to develop a test to determine what is testimonial and what is not. Over time, the primary purpose test emerged as the one to use to make that call. A statement is testimonial if its primary purpose is to help in the prosecution of an offense; it is non-testimonial if its primary purpose is to help the police deal with an ongoing emergency.

Even though the state tried to argue otherwise, the New Mexico Supreme Court held that the crime lab report in this case was testimonial. But the New Mexico high court also ruled the report could be admitted without Caylor’s presence without violating the confrontation clause because Caylor was nothing more than a scribe in this matter — all he did was transcribe the results of the test onto a form — and also because the substitute analyst provided by the state was available to be cross-examined at trial about the test and the laboratory procedures used.

In reversing the New Mexico Supreme Court, Justice Ginsburg emphasized that once the state chose to introduce the report certified by Caylor, then Caylor, and not some substitute, became the witness Bullcoming had the right to confront. Even though the substitute witness was himself an expert about the gas chromatograph machine and the lab’s procedures, he could not testify about what Caylor knew or observed or how he’d done the testing. So a substitute was not good enough.

In a separate part of the majority decision that was joined only by Justice Scalia, Justice Ginsburg also addressed the state’s arguments that this rigid view of the confrontation clause imposes undue burdens on the prosecution. She probably wrote this section to answer the dissenters, who strongly supported the state on this. Justice Ginsburg noted that under New Mexico law, blood samples are retained, and can be retested by a different analyst, which easily could have been done in this case by the analyst who subbed for Caylor. She also noted that since lab analysts’ testimony usually bolster the state’s case, defense lawyers don’t usually bother to make them testify in person. (If the defense agrees, a crime lab report can be entered into evidence without the author being present; in this case the defense lawyer did not agree to that.) Finally, she noted that New Mexico could enact a notice-and-demand statute that allows the admission of forensic reports without any testimony unless the defense demands the presence of the analyst (Ohio has such a statute).

Justice Sotomayor wrote a separate concurrence to emphasize reasons why Caylor’s report was clearly testimonial evidence. She may have done this in part because of her recent decision in Michigan v. Bryant—in which Justices Ginsburg and Scalia disagreed with her—in which she wrote that statements of a dying murder victim telling the police who shot him were non testimonial. To emphasize that the holding in the Bullcoming case was limited, she gave a number of examples of what the report in this case was not, and gave a number of examples of non-testimonial statements that could be admitted into evidence.

Much of Justice Kennedy’s dissent strongly pushes back at the majority’s view that this decision will not burden the prosecution. Kennedy wrote that “in these circumstances requiring the state to call the technician who filled out a form and recorded the results of a test is a hollow formality.” He notes that the work of many different people go into any final test report, and the Court has never held that each must appear, that the defense is free to bring out any and all of these inadequacies and let the jury evaluate them. He thinks that from now on defense lawyers everywhere will demand in-person testimony of the test analysts. And he cites statistics from New Mexico — the fifth largest state by area, by one which employs only 10 lab analysts — showing that “from 2008-2010 subpoenas requiring New Mexico analysts to testify in impaired driving cases rose 71%.”

And yet, I can’t help but note that there have been a number of serious crime lab scandals in recent years. And one wonders why Curtis Caylor was placed on unpaid leave from his job as a lab analyst. The right of confrontation surely helps shed light on these important issues.

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Marianna Brown Bettman

Marianna Brown Bettman is Distinguished Teaching Professor and Professor of Practice Emerita at the University of Cincinnati College of Law, where she taught torts, legal ethics, and a seminar on the Supreme Court of Ohio. She is also a former Ohio state court of appeals judge. Professor Bettman is a frequent presenter on Supreme Court of Ohio cases at Continuing Legal and Judicial Education seminars and conferences including the Ohio Judicial Conference. She also provides appellate consulting services to attorneys.